Florida Judge Grants $750,000 Award for Attorneys' Fees in Open Government Suit

By cla on January 5, 2010 9:00 AM

A Florida judge awarded $750,000 in legal fees on Sept. 25, 2009, to the attorneys of an open-government advocacy group that sued several city officials in Venice, Fla., for violating the state's open government laws.

According to a Sept. 15, 2009 story in the Sarasota Herald-Tribune, the Florida nonprofit group Citizens for Sunshine filed a lawsuit against several Venice city council members in May 2008, alleging that they had violated Florida's Public Records Act as well as its Government in the Sunshine Law by illegally holding secret meetings via e-mail and deleting e-mails in which they discussed city business.

In an amended complaint filed by the group on Oct. 8, 2008, Citizens for Sunshine claimed that the officials had "held electronic meetings and used liaisons to discuss public business which has not been noticed to the public" and "destroyed and failed in their duty to preserve public records in their possession." The case settled in March 2009 with the city acknowledging violations of Florida law and agreeing to change its policies to align with Florida's open government regulations. In the settlement, the parties decided to let the circuit court settle the issue of legal fees incurred in the pre-settlement litigation.

Although attorneys for the city argued that the award was excessive, Sarasota County Circuit Judge Robert Bennett stated in his decision, Citizens for Sunshine v. City of Venice, No. 2008-CA-8108-SC (Fla. Cir. Ct. 2009), that the case had been "vigorously and zealously litigated by all parties" and that the award was equitable.

According to the September 15 Herald-Tribune story, the city had argued that the Citizens for Sunshine attorneys should have been paid $63,000 as part of the settlement. Meanwhile, the plaintiffs had originally asked for $2 million, arguing that the award should include $842,000 that had been billed on the case in addition to a multiplier which can be allowed under Florida common law when the suit has been brought in the public interest. Bennett rejected the request for a multiplier in his September 25 decision.

Florida's open-government laws, Fla. Stat. sectionsection 119.01-.19 and 286.001-.030, include the requirement that "all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision ... at which official acts are to be taken are declared to be public meetings open to the public at all times."

A Sept. 26, 2009 story in the Herald-Tribune reported that the city had already spent over $600,000 to defend city officials, and when added to the costs incurred by city attorneys fighting over fees, the total cost of the case to the city came to about $1.4 million.

"It vindicated the public's right to know," said Michael Barfield, an assistant to Citizens for Sunshine attorney Andrea Mogensen. "The language in the judge's order was more satisfying than the amount the judge ordered."

"I'm fairly confident this is a record award in Florida," said Barbara Petersen of the First Amendment Foundation in Tallahassee in a September 29 Associated Press (AP) story. "It makes everyone sit up and take notice."

"It again drives home the point: It doesn't matter whose AOL account you're using ... if you're a government entity and you're discussing public business, those documents are going to be public record," Petersen said.

In an amicus curiae brief filed in the case in support of Citizens for Sunshine, the Reporters Committee for Freedom of the Press urged Judge Bennett to note the "considerable public interest" served by the lawsuit. "Without this litigation, Defendants may have continued to disregard these open government laws, flaunting [sic] the procedural mechanisms that allow a democracy to function," the brief stated. "Plaintiff took on the burden to restore transparency in government on behalf of all citizens. Such service in the public interest should be recognized and attorney's fees and costs should be awarded in this case."

Pam Johnson, the city's public information officer, said in the September 29 AP story that the city is "grateful to have this behind us so we can carry on with our real work."

The September 26 Herald-Tribune story reported that Venice has changed its policies as a result of the litigation, and now requires that all city officials undergo training in Florida's open records law. In addition, city officials are now allowed to use only their city-issued e-mail address for official business.